We are regularly told in our practice by clients, that building modifications to provide access for people with disability cannot be undertaken due to “Heritage Restrictions” on the subject property.
This, however, is an incorrect statement and I hope the following post makes things clearer, particularly in terms of the hierarchical levels of Australian legislation.
Firstly we need to understand the relationship between federal and state acts and codes.
Disability Access Acts & Regulations
Disability Discrimination Act 1992
At the very top, we have the Disability Discrimination Act 1992 and whilst this does not include any such prescriptive requirements on how compliance can be achieved, it, however, outlines where and how discrimination must not occur.
The following are the key sections of the DDA that are typically applicable in the built environment.
Section 5 : Direct Discrimination: less favourable treatment
Discrimination occurs if, because of a person’s disability, the person is, or is proposed to be, treated less favourably than a person without the disability.
Sections 7 & 8 : Discrimination: use of devices & aids
Discrimination occurs if a person who has a disability is treated less favourably because he or she is accompanied bya palliative or therapeutic device or auxiliary aid,
- a palliative or therapeutic device or auxiliary aid,
- an interpreter, reader, assistant or carer,
- a seeing- or hearing-guide dog (or other animal)
Section 23 : Discrimination in access to & use of premises
Unless unjustifiable hardship applies, a person must not be discriminated against because of the person’s disability, or the disability of any associate:
- by denying access to or use of public premises;
- in the terms or conditions for entry or use of such premises;
- in the means of access to such premises;
- by denying the use of public facilities in such premises;
- in the terms or conditions for use of such facilities;
- by being required to leave such premises or cease to use such facilities.
Discrimination is allowed if premises are existing, and alterations required to make them accessible would impose unjustifiable hardship on the person providing the accessibility.
Section 24 : Discrimination in access to & use of goods, services and facilities
Unless unjustifiable hardship applies, a person must not be discriminated against because of the person’s disability, or the disability of any associate
- by refusing to provide goods or services or to make facilities available; or
- in the terms or conditions on which goods or services are provided, or facilities are made available; or
- in the manner in which goods or services are provided or the facilities made available.
Discrimination is allowed if providing the goods or services, or making the facilities available, would impose unjustifiable hardship on the person providing or making them available.
There is a provision within the Act that covers “Unjustifiable Hardship” as follows
Section 11 : Unjustifiable hardship
In determining what constitutes unjustifiable hardship, the following will be considered:
- any resulting benefit or detriment for persons concerned;
the effect of a disability of a person concerned;
- the financial circumstances and the estimated expenditure required to be made by the person claiming unjustifiable hardship; and
- in the case of the provisions of services, or the making available of facilities – an action plan given to the Commission.
You will note Heritage is not provided as an option to exempt access.
Therefore any organisation that failed to provide access to a building where it is possible, would be acting unlawfully and in breach of the Federal Act.
Whilst the DDA does not have any prescriptive requirements within it, it does reference two other pieces of Federal legislation that do detail specific requirements.
- Disability Standards for Accessible Public Transport 2002 – known as the ‘Transport Standards’ – sets out technical requirements and target dates (up to 2032) for public transport buildings and conveyances
- Disability (Access to Premises – Buildings) Standards 2010 – known as the ‘Premises Standards’– sets out technical requirements for buildings
Disability (Access to Premises – Buildings) Standards 2010
The Premises Standards introduces responsibilities for a number of stakeholders who must ensure compliance is achieved.
- Local Councils
- Building surveyors
- Property owners
- Building designers
- Project managers
- Property lessees
- Property managers
Structure of the Premises Standards
- Parts 1 to 6 are the administrative sections – some portions are replicated in the building regulations under Regulations 116 & 160B
- Schedule 1, Access Code for Buildings – replicated in various sections of the BCA
- D3 Access for people with disability
- E3.6 Passenger lifts
- F2.4 Accessible sanitary facilities
Victorian Building Regulations
(similarly applies to most other states and territories)
Simultaneously on 1 May 2011, State legislation was introduced that replicated the Premises Standards to ensure consistency between Commonwealth and State legislation
Changes to State legislation included:
- Changes to the Building Regulations 2006 – Regulations 116 & 160B
- Introduction of BCA 2011
- Several new and updated Australian Standards (e.g. AS 1428 suite of documents)
Building Code of Australia
BuildingCode of Australia D3.4 Exemptions
The Building Code of Australia does provide an exemption to access, where access is inappropriate. Typical areas exempt from access include
- Commercial kitchens
- Plant rooms
- Storage areas
- Industrial manufacturing/ warehouses
- Emergency services stations
- Some defence buildings
However again, Heritage has not been provided as a justifiable reason.
The only way an organisation could argue not providing access would be;
- Unable to afford building changes
- The building cannot be modified ie say a stair between ground and first floors was very narrow.
Providing access to a heritage listed building for people with a disability whether it’s demolishing a step, increasing the opening of doors etc cannot be prevented as it would be unlawful under the Federal Act.
Can I get a Dispensation?
160B Applications to Exempt Access (Victoria)
Note: Similar appeal processes are available in all other states and territories.
Whilst there is a mechanism in place to exempt access by means of a 160b application to the Building Appeals Board. We would be very confident heritage grounds would not be accepted unless it had a significant impact on the building. If this were to be the case the BAB would simply state the proposed use of the building would be inappropriate if access cannot be provided.
A 160b application is specific for Disability related matters and has a number of significant issues associated with it including;
- Very onerous
- Very expensive
- Takes one of our staff 3 days to prepare.
- Typically take 20 – 2 4 weeks for an approval/ refusal
Refer to VBA Practice Note 2014-14, Issued April 2014
Refer to section 7 of the 160b application form.
It is our professional belief that as the Disability Discrimination Act and Disability (Access to Premises – Buildings) Standards 2010 are both federal pieces of legislation, they take precedence over any local or state government heritage legislation.
So it’s OK to Damage Heritage Buildings for Access?
So as detailed above we can see access takes precedence over heritage requirements, however this does not mean we go around destroying beautiful heritage buildings from our past. Equal Access has acted as access consultants on many heritage building projects around Australia including the Museum of Australian Democracy (Old Parliament House Canberra), the Forum Theatre (Melbourne).
It is our intent as access consultants when consulting on heritage projects is to work together in a collaborative manner with architects, heritage consultants to achieve a solution that is respectful to both the building being upgraded and for the individuals accessing it.
More information on our Heritage consulting Services